exhibit101.htm


    Exhibit 10.1

      AMENDMENT NO. 3 TO AGREEMENT AND PLAN OF
MERGER

       

      This
Amendment No. 3 To Agreement And Plan Of Merger (this “Amendment”) is made
and entered into as of December 17, 2009, by and among Ligand Pharmaceuticals
Incorporated, a Delaware corporation (“Parent); Neon Signal, LLC, a
Delaware limited liability company and a wholly-owned Subsidiary of Parent
(“Merger Sub”);
and Neurogen
Corporation, a Delaware corporation (the “Company”).  This
Amendment is made with regard to the Agreement and Plan of Merger dated August
23, 2009, by and among Parent, Merger Sub and the Company (as previously
amended, the “Agreement”).

       

      1.  The
Agreement is hereby amended by changing the definition of “Determination Date”
in Article I of the Agreement to read in full as follows:

       

      “Determination
Date” shall mean December 15, 2009.

       

      2.  The
Agreement is hereby amended by changing Section 2.06(a)(iii) of the Agreement to
read in full as follows:

      


      (iii)           except
as provided in clauses (i) and (ii) above, each issued and outstanding Company
Share (other than Dissenting Shares) shall be converted, subject to Section
2.09, into the right to receive (A) a portion of a validly issued, fully paid
and nonassessable share of common stock, par value $0.001 per share, of Parent
equal to the Exchange Ratio, including the associated rights under the Parent
Rights Agreement (the “Parent Common Stock”); provided, that the maximum number
of shares of Parent Common Stock that Parent shall be required to issue pursuant
to this Section 2.06(a)(iii) shall not exceed the Maximum Amount, (B) in the
event the Aplindore Program is sold by the Company before the Effective Time, an
amount in cash and/or a number of shares of third-party stock, as the case may
be, equal to the Aplindore Program Consideration which has been received as of
the Effective Time divided by the total number of Outstanding Company Shares,
(C) in the event the Real Estate is sold by the Company before the Effective
Time, an amount in cash equal to the Real Estate Consideration which has been
received as of the Effective Time divided by the total number of Outstanding
Company Shares, (D) one Aplindore CVR (unless the Aplindore Program is sold by
and all proceeds thereof are received by the Company before the Effective Time,
or the Aplindore Program is terminated by the Company before the Effective
Time), (E) one H3 CVR, (F) one Merck CVR, (G) one Real Estate CVR (unless the
Real Estate is sold by and all proceeds thereof are received by the Company
before the Effective Time), and (H)  an amount in cash equal to
$600,000 divided by the total number of Outstanding Company Shares
(collectively, the “Merger Consideration”);

      


      3.  The
Agreement is hereby amended by changing the first sentence of Section 2.08(a) of
the Agreement to read in full as follows:

       

      Before
the Effective Time: (i) Parent shall select a bank or trust company (reasonably
acceptable to the Company) to act as exchange agent with respect to the payment
of the Merger Consideration (the “Exchange Agent”); and (ii) Parent (or, as
applicable, the Company) shall deposit with the Exchange Agent the Section
2.06(a)(iii)(H) cash component of the Merger Consideration, certificates
representing the shares of Parent Common Stock, the Aplindore Program
Consideration (to the extent already received by the Company) in the event the
Aplindore Program is sold by the Company at or before the Effective Time, the
Real Estate Consideration (to the extent already received by the Company) in the
event the Real Estate is sold by the Company at or before the Effective Time,
sufficient to enable the Exchange Agent to make payments pursuant to Section
2.06 and Section 2.09 to the holders of Outstanding Company Shares.

       

      4.  The
Agreement is hereby amended by changing Section 7.01(b) of the Agreement to read
in full as follows:

       

      (b)           by
either Parent or the Company if the Company Stockholder Approval shall not have
been obtained by reason of the failure to obtain the required vote at the
Special Meeting or at any postponement or adjournment thereof by December 31,
2009;

       

      5.  The
Agreement is hereby amended by changing Section 7.01(c) of the Agreement to read
in full as follows:

       

      (c)           by
Parent or the Company at any time after December 31, 2009 (the “Outside Date”)
if the Effective Time shall not have occurred on or before the Outside Date
(provided that the right to terminate this Agreement pursuant to this Section
7.01(c) shall not be available to any party where the failure of such party (or
any Affiliate or Representative of such party) to fulfill any obligation under
this Agreement or any voting agreement has resulted in the failure of the
Effective Time to have occurred on or before the Outside Date;

       

      6.  The
Agreement is hereby amended by deleting Section 7.01(i) of the
Agreement.

       

      7.  The
Agreement is hereby amended by changing Section 7.03(b) of the Agreement to read
in full as follows:

       

      (b)           If
this Agreement is validly terminated by Parent pursuant to Section 7.01(e),
then, within two (2) Business Days after such termination, the Company shall pay
the Termination Fee to Parent.

       

      8.  Except
as expressly set forth herein, the Agreement remains unchanged and in full force
and effect.

       

      9.  This
Amendment may be executed in counterparts, each of which shall be deemed to be
an original, and all of which taken together shall be deemed to constitute one
and the same instrument. The parties agree that delivery of an executed
counterpart of a signature page of this Amendment electronically or by facsimile
shall be effective as delivery of a manually executed counterpart of this
Amendment.

       

      IN
WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Amendment
No. 3 to be executed as of the date first written above.

       

      
        
          	 	LIGAND PHARMACEUTICALS
      INCORPORATED	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ John
      L. Higgins	 
	 	 	John
      L. Higgins	 
	 	 	President
      and Chief 	 
	December
      17, 2009	 	 	 


        

      

       

       

                                      

      
        
          	 	NEON SIGNAL,
    LLC	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ John
      L. Higgins	 
	 	 	John
      L. Higgins	 
	 	 	President
      and Cheif Executive Officer	 
	 December
      17, 2009	 	 	 


        

      

       

       

              

      
        
          	 	Neon  Signal
      Corporation	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ Stephen
      R. Davis	 
	 	 	Stephen
      R. Davis	 
	 	 	President
      and Chief Executive Officer	 
	 December
      17, 2009